AYUB @PAPPU KHAN NAWAB KHAN PATHAN versus S.N. SINHA AND ANR.

K. JAYACHANDRA REDDY, J. We allowed the Writ Petition vide our Order dated 7 .8.90 and released the detenu for the reasons to be given later. We accordingly proceed to give the reasons.

p. 929, margin A

The petitioner was detained t'nder Section 3(1) of the Gujarat Prevention of Anti Social Activities Act, 1985 ('Act' for short) by an Order dated 13.3.90 passed by the Commissioner of Police, Ahmeda· bad City. The grounds were served within time. The said order is challenged in this Writ Petition. It is mainly contended that the detaining authority has not applied his mind in passing the detenion order inasmuch as the relevant material has not been taken into acc?unt at the time of passing the order. Even otherwise, according to the learned counsel, there are absolutely no grounds which warrant detention. It is also further submitted that the provisions of the Act are not attracted even if all the averments in the grounds are accepted. To appreciate this contention it becomes necessary to refer to the contents of the grounds in brief.

p. 929, margin B

The detenu is a resident of Ahmedabad City. There is a reference in the grounds to about three crimes registered in various police stations and they are Crime Nos. 122/86, 70/88 and 96/90. In all these cases it is alleged that the detenu and his associates armed with deadly weapons like Swords, Dhariya and fire-arms commit!t!d offences punishable under Sections 307, 451, 143, 147, 148 1.P.C. and Section 25(1) of the Arms Act. So far as the first two crimes are concerned admittedly the detenu was acquitted. In Crime No. 96/90, in which investigation is pending, bail was granted. Then there is a reference to 8 crimes under the provisions of the Prohibition Act registered in Kagdapith Police Station on the basis whereof he is described as a 'bootlegger' within the meaning of Section 2(b) of the Act. Some ended in conviction and some are pending in trial but admittedly the detenu does not figure in any one of these cases. Thereafter it is

p. 929, margin D

stated in the grounds in general that the detenu was having dangerous weapons and with the aid of his associates, has been subjecting innocent citizens to physical beating causing physical in juries and that he and his associates have been threatening and beating the peace loving citizens and people residing and doing their business in the said area are afraid and an atmosphere of fear, danger and terror prevails and that the detenu comes within the meaning of 'dangerous person' as defined under Section 2( c) of the Act. The detaining authority has also referred to an earlier detention order dated 20.8.85 passed against the detenu and noted that he was released by the High Court. Then the detaining authority proceeds to mention that taking action under Section 59(1) of the Bombay Police Act, 1951 is not possible and also is not appropriate under the circumstances. In the concluding paragraph it is particularly mentined that the detenu was a strong-headed 'dangerous person' and he was using the dangerous weapons creating an atmosphere of terror. Towards the end it is specifically mentioned that in respect of Crime No. 96/90 registered with the Sattelite Police Station, the Chief Judicial Magistrate had remanded him to the judicial custody till 15.3.90 and there are chances of his being released, therefore to prevent him from acting prejudicially to the maintenance of public order, the detention was ordered.

pp. 929–930, margin G

Section 2(b) of the Act defines 'bootlegger' which reads thus:

p. 930, margin C

"bootlegger" means a person who distills, manufactures, stores, transports, imports, exports, sells or distributes any Jiquor, intoxicating drug or other intoxicant in contravention of any provision of the Bombay Prohibition Act, 1949, (Born. XXV of 1949) and the rules and orders made thereunder, or any other law for the time being in force or who knowiqgly expends or applies any money or supplies any animal, vehicle, vessel or other conveyance or any receptacle or any other material whatsoever in furtherance or · support of the doing of any of the things described above by or through any other person, or who abets in any other

p. 930, margin D

manner the doing ofany such thing;" Unless there is material to show that the detenu committed any one of the acts mentioned in the definition, he can not come within the mean· ing of 'bootlegger'. Though in the grounds there is a reference to 8 crimes under the provisions of the Prohibition Act, the detenu, as already mentioned, does not figure in any one of these cases. There is no material whatsoever of his involvement in any manner in any of these prohibition cases. Therefore, he can not be said to be a bootlegger.

p. 930, margin E

Now we shall consider whether he comes within the meaning of 'dangerous person' as defined in Section 2(c) of the Act which reads as under:

p. 930, margin G

"2(c) "dangerous person" means a person, who either by himself or as a member of or leader of a gang, habitually commits, or attempts to commit or abets the commission of offences, punishable under Chapter XVI or Chapter XVII or Chapter XXII of the Indian Penal Code (45 of 1860), or any of the offences punishable under Chapter V of the

p. 931, margin A

Arms Act, 1959 (54 of 1959)". As per this definition, a person, who 'habitually' commits or attempts to commit or abets the commission of offences mentioned therein either by himself or as a member of or leader of a gang is a "dangerous person". The expression 'habitually' is very significant. A person is said to be a habitual criminal who by force of habit or inward disposition is accustomed to commit crimes. It implies commission of such crimes repeatedly or persistently and prima facie there should be a continuity in the commission of those offences. In Vijay Narain Singh v. State of Bihar and Ors., [1984] 3 SCC 14 the majority explained the meaning of the word 'habitually' thus:

p. 931, margin B

"The expression 'habitually' means 'repeatedly' or 'persistently'. It implies a thread of continuity stringing together similar repetitive acts. Repeated, persistent and similar, but not isolated, individual and dissimilar acts are necessary to justify an inference of habit. It connotes frequent commission of acts or commissions of the same kind referred to in each of the said sub-clauses or an aggregate of

p. 931, margin D

similar acts or omissions". Rashidmiya © Chhava Ahmedmiya Shaik v. Police Commissioner, Ahmedabad and Another, [1989] 3 SCC 321 is yet another case where the scope of Section 2( c) of the Act came up for consideration before this Court and.it is held that:

p. 931, margin E

"Therefore, this solitary incident would hardly be sufficient to conclude that the detenu was habitaully committing or attempting to commit or abetting the commission of

p. 931, margin F

offences." It is submitted that in the instant case except Crime No. 96/90 there is no other case pending and the other two crimes which are referred lo in the grounds ended in acquittal and the definition of 'dangerous person' in Section 2(c) does not include cases under the Prohibition Act. Therefore the detenu is not a habitual offender so as to come within the meaning of 'dangerous person'. We find considerable force in this submission. We have gone through the entire record. The learned counsel appearing for the State could not place any material from which it can be inferred that the petitioner was a habitual offender. No doubt a lengthy counter is filed in which it is repeatedly averred in general that the detenu was indulging in prejudicial activities but as already mentioned, only Crime No. 96/90 is pending investigation and from this alone we can not infer that the petitioner is a 'dangerous person' within the meaning of Section 2(c) of the Act. To satisfy ourselves we have also carefully perused the FIR in Crime No. 96/90 and the complaint annexed to the same. The main allegation against the detenu was that he, out of sudden excitement, fired the revolver and as a result of which one Mehbub Khan received injury on his leg and again he fired a shot into the air and that he and his associates were moving around in a jeep threatening the people in the area. But in the order passed by the learned Sessions Judge on 13.3.90 while releasing the petitioner on bail, it is noted that the said Mehbub Khan had no fire-arm injury at all and as a matter of fact, the public prosecutor conceded the same. The learned Sessions Judge has also noted that no medical evidence is produced to PJ:9Ve that any one was injured during the alleged occurrence. If such is the only crime pending in which the detenu is alleged to have participated in, it can by no stretch of imagination be said that he comes within the meaning of 'dangerous person' and the conclusions drawn by the detaining authority are bereft of sufficient material as required under Section 2(c) of the Act. This betrays non-application of mind by the detaining authority. Consequently, the grounds on which the detention order is passed, are irrelevant and non-existing. These are the reasons which weighed with us for not upholding the detention. G.N. Petition allowed.

pp. 931–932, margin G